Werner Menges
8 May 2008
Windhoek — A YOUNG man who ended a short-lived drinking companionship when he shot dead a fellow shebeen patron in Windhoek in what he claimed was an accidental killing was convicted of murder in the High Court in Windhoek on Tuesday.
Collen Swartbooi (25) is to be sentenced by Acting Judge John Manyarara tomorrow.
Acting Judge Manyarara on Tuesday found Swartbooi guilty on a charge of murder in connection with the shooting incident that ended the life of 24-year-old Sydney Kamati in a shebeen in Soweto, Katutura, on April 12 2003.
Swartbooi also pleaded guilty to counts of negligent discharge of a firearm, illegal possession of a 7,65 mm pistol, and illegal possession of two rounds of ammunition for that pistol at the start of his trial on Tuesday last week.
He denied guilt on the murder charge.
During the trial, Swartbooi testified that Kamati was struck by a bullet and killed when a shot went off accidentally while he and another patron at the shebeen were wrestling for control of the pistol that he had fetched from his father's home after he and Kamati had been involved in a verbal altercation at the shebeen.
An eyewitness to the shooting, Petrus Saron, however testified that he saw Swartbooi entering the shebeen, cocking the pistol and pointing it at Kamati while saying to Kamati: "Do you know me?" He was trying to restrain Swartbooi when Swartbooi fired off a shot that struck Kamati in the head, Saron told the court.
Swartbooi disputed the correctness of that recollection of the event.
According to him, he merely wanted to threaten Kamati with the pistol after Kamati had been rude and insulting to him while they were enjoying a drink together.
He claimed he only took out the pistol and pointed it at the floor when he returned to the shebeen after fetching the gun, and that a shot then went off while he and Saron were in a physical struggle over the firearm.
In Acting Judge Manyarara's opinion, Swartbooi was not a convincing witness, he indicated in his judgement.
He stated that Swartbooi's evidence was not worthy of belief and that he was rejecting it.
Saron had made a good impression on him as a witness, and he was not given any reason why Saron would have falsely incriminated Swartbooi, Acting Judge Manyarara also said in his judgement.
In his testimony Swartbooi denied that he had cocked the firearm as was testified by Saron.
Acting Judge Manyarara noted, though, that Swartbooi had told the Police in a first statement that he made after his arrest that he thought the firearm was safe when he pulled it out after entering the shebeen, that Kamati then stormed at him and that he then cocked the firearm, after which a shot went off by itself.
A thread which runs through Swartbooi's initial account of the event to the Police was that he must have come to his senses and regretted what he had done, Acting Judge Manyarara remarked.
He found that Swartbooi had murdered Kamati with an actual intention to kill.
He further found that the intention to kill was formed when Swartbooi took his father's pistol from his father's house before returning to the shebeen, and that the intention to kill was then executed by cocking the pistol, pointing it at Kamati and firing a shot that struck Kamati in the head.
"The fact that I went home and took the pistol, I know that it was wrong of me," Swartbooi stated when he testified in his own defence last week.
"I shouldn't have done something like that. I'm still disappointed in myself. I'm apologising for what I did," he said.
He was still young and stupid at the time, he also told the court.
After the verdict had been given, Swartbooi's defence lawyer, Johan van Vuuren, told Acting Judge Manyarara that the conviction would be following Swartbooi - a father of one child, with his girlfriend now expecting his second child - for the rest of his life.
Although Swartbooi had been convicted of serious offences, there would be nothing wrong with the court now showing a measure of mercy to him, Van Vuuren said.
State advocate Sandra Miller remarked that the loss of Kamati's life was "completely senseless" and the result of something trivial.
She said the use of firearms is rife in Namibia, and asked the court to try to do its part in discouraging gun crimes.
Swartbooi had been free on bail until his conviction, whereafter Acting Judge Manyarara cancelled his bail and ordered that he should be kept in custody until he is sentenced.
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